Com. v. Zizzo, D., III ( 2022 )

J-S05029-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC RAYMOND ZIZZO, III :
:
Appellant : No. 1062 MDA 2021
Appeal from the Judgment of Sentence Entered July 30, 2019
In the Court of Common Pleas of Luzerne County
Criminal Division at No: CP-40-CR-0001792-2017
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM BY STABILE, J.: FILED MAY 17, 2022
Appellant, Dominic Raymond Zizzo, III, appeals from the judgment of
sentence imposed in the Court of Common Pleas of Luzerne County on July
30, 2019, following the revocation of Appellant’s probation. Counsel has filed
a brief and petition to withdraw pursuant to Anders v. California, 386 U.S.
738 (1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We
deny counsel’s request to withdraw and remand for counsel to take
appropriate action in accord with this memorandum.
The factual and procedural background of the instant appeal is not at
issue. The trial court summarized the relevant background as follows:
On November 21, 2017, [Appellant] pled guilty to one count of
statutory sexual and indecent assault. Sentencing occurred on
April 13, 2018. [Appellant] received 11 to 23 months on the
statutory sexual assault charge and 36 months of consecutive
probation on the indecent assault charge. He was given credit for
359 days of incarceration served prior to sentencing.
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On July 29, 2019, a probation revocation hearing was held as a
result of a violation report which was dated March 26, 2019. The
report alleged that [Appellant] violated the terms of his probation
by engaging in unsupervised contact with minors, consuming
alcohol and failing to complete sex offender treatment. At the
conclusion of the hearing[,] [Appellant]’s probation was revoked.
He was then resentenced to 24 to 84 months on the indecent
assault charge[,] which was graded as a felony of the third degree.
No direct appeal was filed following the revocation hearing. On
December 11, 2019, [Appellant] filed a motion for post conviction
collateral relief. As a result of the PCRA motion, [Appellant]’s
appellate rights were reinstated regarding the revocation of his
probation. A notice of appeal was filed on his behalf on August 4,
2021.
An order was then issued by [the trial court] which required a
concise statement of errors complained of on appeal pursuant to
[Pa.R.A.P.] 1925(b) be filed by [Appellant] within twenty-one
days. Counsel filed a concise statement on August 31, 2021. The
statement alleges error in connection with the finding that
[Appellant] violated his probation by having inappropriate contact
with minors and being discharged from the sexual offender
program. Error is also alleged in permitting testimony by the
Commonwealth’s witness in violation of [Appellant]’s Fifth
Amendment Rights.
Trial Court Opinion, 9/22/21, at 1-2 (unnumbered).
Appellant raises the following issues for our review:
I. Whether the [trial] court erred or abused its discretion
in finding that [Appellant] violated his probation by:
a. having inappropriate contact with minors;
b. being discharged from the sexual offender
program.1
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1 Sub-issue b, while listed as a claim, was not addressed in the argument
section of the brief. Similarly, while the issue was raised in Appellant’s Rule
(Footnote Continued Next Page)
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II. Whether the [trial] court erred in permitting testimony
by the Commonwealth’s witness in violation of
[Appellant]’s Fifth Amendments rights.
Appellant’s Anders’ Brief at 1.
Before we address the merits of the challenges, we must consider the
adequacy of counsel’s compliance with Anders v. California, 386 U.S. 738(1967) and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
Pursuant to Anders, when counsel believes an appeal is frivolous and
wishes to withdraw from representation, counsel must do the following:
file a petition averring that, after a conscientious examination of the
record, counsel finds the appeal to be wholly frivolous. Counsel must
also file an Anders brief setting forth issues that might arguably support
the appeal along with any other issues necessary for the effective
appellate presentation thereof. . . .
Anders counsel must also provide a copy of the Anders petition and
brief to the appellant, advising the appellant of the right to retain new
counsel, proceed pro se or raise any additional points worthy of this
Court's attention.
Commonwealth v. Tukhi, 149 A.3d 881, 885-86 (Pa. Super. 2016) (citation
omitted).
In Santiago, our Supreme Court addressed the contents of an Anders
brief, and required that the brief:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
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1925(b) statement, it was not addressed by the trial court in its Rule 1925(a)
opinion.
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(3) set forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
We start our review by examining the petition to withdraw as counsel.
In the petition, counsel failed to advise Appellant that he may “raise any
additional points worthy of this Court’s attention.” Anders, supra; Tukhi,
supra.
In addition, in his Anders brief, counsel failed to state his reasons for
concluding that the appeal is frivolous. Santiago, supra. Specifically,
counsel failed to “articulate the relevant facts of record, controlling case law,
and/or statutes on point that have led to the conclusion that the appeal is
frivolous.” Santiago, 978 A.2d at 361. Because he failed to do so, we are
unable to discern how counsel reached that conclusion. Among other things,
we find troublesome the absence of any meaningful discussion of the
revocation hearing.
As noted above, on April 13, 2018, Appellant was sentenced to 11 to 23
months on the statutory sexual assault charge and 36 months of consecutive
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probation on the indecent assault charge. In addition, Appellant was
sentenced to a 36-month probation term consecutive to the sentence imposed
on the statutory sexual assault charge. In connection with the probation term,
the trial court imposed, among others, the following conditions:
• Must attend and complete sexual offender treatment.
• No contact with victim.
• No contact with minors/or places where minors frequent/schools,
school zones, school activities, public pools, parks, or
playgrounds.
Sentencing Order, 4/13/18 (emphasis added).
On March 26, 2019, the Luzerne County Probation Department issued a
Parole Violation Report, which was filed on April 24, 2019, after Appellant
waived his right to a Gagnon I hearing.2 In the report, the Probation
Department alleged that Appellant committed, inter alia, a technical violation
of the rules of probation and parole, as well as the trial court sentencing order.
The Probation Department identified the condition being violated as a court
ordered condition, specifically the “No Unsupervised Contact With Minors”
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2 See Gagnon v. Scarpelli, 411 U.S. 778 (1973). When a probationer is
detained pending a revocation hearing, due process requires a determination
at a pre-revocation hearing, a Gagnon I hearing, that probable cause exists
to believe that a violation has been committed. Commonwealth v. Sims,
770 A.2d 346, 349 (Pa. Super. 2001). Where a finding of probable cause is
made, a second, more comprehensive hearing, a Gagnon II hearing, is
necessary before the court can make a final revocation decision. Id.-5-
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condition. In the report, the Probation Department described the offending
conduct as follows:
Offender violated said rule, in that his alleged conduct constitutes
a failure to comply with the rules of Probation and Parole, as well
as the Court Order. [Appellant] admitted to having contact with
a 17-year-old minor on occasion, and admitted to “making out,
kissing, fondling, and grabbing” her as well. His justification being
that “she was turning eighteen in a couple [of] weeks.” Upon
questioning in the probation office, [Appellant] admitted to the
actions and said he “waited until her birthday” to have sexual
contact with her. He also admitted to being alone with his friend’s
5-year-old niece on multiple occasions. He admitted to being
sexually aroused by the victim climbing on him, and said that the
victim “grabbed his crotch area” and “sucked his fingers.” He
admitted the contact to the group on March 21, 2019, and also in
the probation office on March 25, 2019. [Appellant] said he
“should have lied.”
[Appellant] is a Tier II Sex Offender and cannot be at such an
event according to the rules. [Appellant] disclosed this
information to [p]olygraph examiner and his [Sexual Offender
Assessment Board] Counselor, Thomas Dougherty. Mr.
Dougherty reported the two incidents to Child Line.
Parole Violation Report, 3/26/19 at 1-2.
At the revocation hearing, counsel for Appellant argued that the
condition imposed by the trial court (i.e., no contact with minors) was different
from the condition being enforced by the Probation Department (i.e., no
unsupervised contact with minors), and that the Probation Department in
essence modified the condition without the approval of the trial court.
Furthermore, counsel argued that to the extent the Probation Department
properly modified the condition initially imposed by the trial court, the
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Commonwealth failed to prove that the contact was unsupervised. N.T.,
Revocation, 7/29/19, at 22-23.
The Probation Department acknowledged that the condition, as
formulated by the trial court, was impossible to enforce, given the nature of
Appellant’s employment (working at a pet store). N.T., Revocation, 7/29/19,
at 5. Accordingly, the Probation Department authorized Appellant to work in
an environment where children could be potentially present (pet store) and
interpreted the condition imposed by the trial court to mean “no adverse
contact with minors,” id., or “no unsupervised contact with minors,” id. at 6-
7; see also Parole Violation Report, supra. The Commonwealth argued that
the initial condition (no contact with minors) was not changed by the Probation
Department, and that, essentially, it meant no adverse contact with minors.
Id. at 21-23.
The trial court agreed with the Commonwealth’s position and revoked
Appellant’s probation.
Case law exists suggesting that current counsel for Appellant may have
overlooked an issue. In Commonwealth v. Foster, 214 A.3d 1240 (Pa.
2019), our Supreme Court held that under 42 Pa.C.S.A. § 9754, a sentencing
court may not delegate its statutorily proscribed duties to probation and parole
offices. However, in Commonwealth v. Elliott, 50 A.3d 1284 (Pa. 2012),
our Supreme Court explained that while “the legislature has placed the
authority to impose a term of probation, and the conditions therefore, solely
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with the trial courts,” id. at 1291, the Pennsylvania Board of Probation and
Parole (State Board) and its agents “may impose conditions of supervision
that are germane to, elaborate on, or interpret any conditions of probation
that are imposed by the trial court.” Id. at 1292. “A trial court may impose
conditions of probation in a generalized manner, and the [State] Board or its
agents may impose more specific conditions of supervision pertaining to that
probation, so long as those supervision conditions are in furtherance of the
trial court’s conditions of probation.” Id. Notably, since the issue in Elliott
was whether the State Board had the authority to impose conditions of
supervision, Elliott did not specifically address whether a county probation
board (such as the Montgomery County Probation Board, the entity that
supervises Appellant’s probation) has similar authority.
Current counsel for Appellant does not mention any of the issues raised
by counsel at the revocation hearing. We are not suggesting that the issues
raised by counsel at Appellant’s revocation hearing entitle Appellant to relief.
In fact, we take no position on these issues. We merely note that the issues
raised by counsel at the revocation hearing do not appear wholly frivolous.3
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3 We have stated that “frivolous is not the same as meritless; an appeal is
frivolous where it lacks any basis in law or fact.” Commonwealth v. Smith,
700 A.2d 1301, 1305 n. 10 (Pa. Super. 1997) (citation and internal quotation
marks omitted); see also Commonwealth v. Wrecks, 931 A.2d 717, 722
(Pa. Super. 2007) (“The heightened protection afforded to Anders appellants
. . . arises because the right to counsel on direct appeal and the right to the
direct appeal itself are constitutional ones.”); Commonwealth v. Kearns,
(Footnote Continued Next Page)
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However, if counsel believes otherwise, counsel, on remand, should explain
why those issues are in fact wholly frivolous.
We also note that current counsel apparently does not identify as a
potential issue the testimony of the probation officer at the revocation hearing
relating to Appellant’s admissions. It appears, however, that Appellant was
interrogated by the probation officer while in custody. See N.T., Revocation,
7/19/19, at 6-7; 16-17. It is not for us to make an argument on behalf of
Appellant. However, current counsel should consider the impact, if any, of
Commonwealth v. Knoble, 42 A.3d 976 (Pa. 2012), and Commonwealth
v. Cooley, 118 A.3d 370, (Pa. 2015). If counsel believes that Knoble and
Cooley have no bearing on the instant matter or that these cases would not
change his assessment, counsel must explain, on remand, how he reaches
that conclusion.
Current counsel also appears to have equated the interaction between
Appellant and the probation officer with the interaction between Appellant and
the SOAB counselor. The two situations are factually different, and may result
in different legal consequences, which current counsel fails to appreciate. Id.____________________________________________
896 A.2d 640, 647 (Pa. Super. 2006) (“It may be that counsel believes that
the argument advanced is unlikely to ultimately prevail. Nevertheless, this
does not mean that the appeal is wholly frivolous.”); 86 A.3d 877, 879-80 (Pa.
Super. 2014); Commonwealth v. Orellana, 86 A.3d at 882. 86 A.3d 877,
882 (Pa. Super. 2014).
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Accordingly, we deny counsel’s petition to withdraw and remand for
counsel to file either an advocate’s brief or a brief in full compliance with
Anders, with an accompanying motion to withdraw. See Commonwealth
v. Vilsaint, 893 A.2d 753 (Pa. Super. 2006) (remanding for counsel to file
either a proper Anders brief or an advocate’s brief upon concluding that the
brief filed was technically and substantively inadequate). Counsel must file
either brief within 30 days of the filing of this memorandum, and the
Commonwealth may file its brief within 30 days of the filing of Appellant’s
brief.
Petition to withdraw denied. Case remanded with instructions. Panel
jurisdiction retained.
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